Part V: Zoning Ordinance

PART V: The Zoning OrdinanceJune 9, 20081. The Foundation & Need for Zoning:
In the minds of many people, zoning is viewed as a restriction on private property rights. After all, it places limits on how people can use their land, which are restrictions that could not be imposed, if a Zoning Ordinance is not adopted. From this point of view, zoning seems to restrict a landowner’s freedom to use his/her property freely. That is and has always been the strongest argument against zoning.

It is true that the concept of zoning is less than 100 years old. Although the earliest Zoning Ordinances were written and adopted just after the turn of the Twentieth Century, the U.S. Supreme Court did not sustain the legal authority of local governments to adopt zoning until it upheld the City of Euclid, Ohio’s Zoning Ordinance in 1926 (Euclid v. Ambler Realty). However, to say that prior to zoning there was no legal restriction on the use of land would be grossly misleading. One of the reasons that zoning was created was to stem the rising tide of “nuisance law suits.” These law suits were common in the Court system before the invention of zoning and were filed by landowners seeking relief from or compensation from adjoining landowners when their land use and development activities caused impacts on their neighbors. The list of causes for alleged land use “nuisances” is lengthy, ranging from manufacturing plants spewing smoke on neighboring orchards and causing fruit losses, to landfills causing groundwater contamination, to subsidence from underground mining activities, to noise and odor pollution from adjoining slaughter houses.

In the early development of the nation, these issues were not a serious problem. Most people lived in rural areas, where properties were large and landowners were not so directly impacted by the activities of their neighbors. Cities were small, modern industrial processes did not exist, and most people lived off the land. However, as the industrial era emerged (resulting in large scale production processes and an associated increase in pollution and waste production) and cities (where people lived in higher density settings) grew, conflicts between neighboring uses and property owners increased and became more intense. In response to these growing property ownership conflicts, the volume of nuisance law suits also increased, thereby clogging the court system and creating political issues that local government officials needed to resolve. The modern concepts of planning and zoning emerged from these conflicts as strategies to balance private property rights and protect (or stabilize) private property values.

Thus, the age-old argument that “I own my property and I have the right to use it as I please” has meaning only if it is accompanied by the corollary, “as long as I don’t use my property in a way that would infringe on my neighbor’s right to enjoy the same privilege.” This corollary illustrates the principal of “absolute rights apply absolutely” (or equally to all), and it is often overlooked or ignored. It also explains why, in a free and egalitarian society, we must use some self-restraint in exercising our basic freedoms in order to ensure that we don’t infringe on the rights of others. Such self-restraint should not be seen as an infringement on personal liberties, rather it is an obligation to protect equal rights.

Unfortunately, history has shown repeatedly that “balancing property rights” is more difficult to achieve as the density of population increases, the average size of each property decreases, and society becomes more diverse and complex. That is why the use of zoning expanded throughout the Twentieth Century and continues to expand today. It is also the reason why zoning can be viewed not as a simple restriction on private property rights, but as a tool to define and balance private property interests so that conflicts between property owners are minimized.

2. The Construction of a Zoning Ordinance:
A Zoning Ordinance is designed to define land use rights and govern the development of a single property or development site in a way that protects the health, safety, and welfare of the population. In contrast, Subdivision Regulations govern the division of a property into 2 or more lots and the design of streets and infrastructure improvements to serve the subdivision, not the use of the land. Development projects that do not require the division of land (site plans and building permits) are reviewed for compliance with the Zoning Ordinance. Both types of regulations must be designed in accordance with the Comprehensive Plan, and are used as primary implementation tools for the plan.

In planning circles, there are 2 basic types of Zoning Ordinances. The first type is based on the original concept used by the City of Euclid, Ohio that was upheld by the U.S. Supreme Court in 1926. This method of zoning controls conflicts between land uses by creating generally homogenous land use districts that segregate uses that might impact each other. Thus, the ordinance will create separate residential, commercial, and industrial zones and restrict the types of uses that can locate in each zone to minimize conflicts. This form of zoning is known as “Euclidean Zoning,” and is the predominant type of zoning used today.

The second basic type of zoning emerged later (in the 1960’s and ‘70’s), and is generally known as “Performance Zoning.” This method of zoning uses specific performance standards and requirements to prevent land use conflicts, rather than separating conflicting uses into homogenous zoning districts. For example, a Performance Zoning ordinance might require landscaped buffers and visual screens between certain uses to control light and noise pollution. The width of the buffer and the types of improvements that would be required within it (a wall, versus or in addition to planting) would vary depending upon the level of potential conflicts between the uses. Thus, a wide buffer and a masonry wall might be required between a residence and an commercial use, where only a narrow planting screen might be required between a single family residence and a duplex. This type of zoning allows more flexibility in the mix of uses that can occur in an area, but may impose greater requirements in how they are designed to manage and minimize potential conflicts. Many Zoning Ordinances today include a combination of Euclidean and Performance Zoning principals.

Most Zoning Ordinances are organized or formatted in a similar pattern. The first section or “article” is usually the “Preamble,” which establishes the Zoning Ordinance, its legal authority, its general intent and purpose, and the area and types of development activity it governs. These aspects are considered the most basic provisions of the Ordinance. The Preamble is usually followed by a “Definitions” section that clarifies how certain key terms used in the ordinance should be interpreted. The Definitions section is usually followed by sections that address more detailed requirements of the Ordinance, with the most general requirements followed by the more use-specific requirements. These sections can and usually include:

A. A section establishing the zoning districts, their purposes, and general guidelines for interpreting the zoning district boundaries and permitted uses within them

B. A section or table listing the land uses that may be allowed within each zoning district

C. A section or table listing the dimensional requirements for development on each lot (lot size, lot width and / or depth, setbacks, building height, lot coverage, etc.)

D. A section outlining special design and development requirements for certain land uses

The final chapters or articles of the Zoning Ordinance typically address the general procedures for administering the Zoning Ordinance (including zoning text and map amendments), the creation and role of the Board of Appeals, and other miscellaneous legal provisions. The City of Cumberland’s Zoning Ordinance is formatted in accordance with this general pattern.

3. The Planning Commission’s Role:
The Planning Commission has 2 specific roles to perform under the Zoning Ordinance. The first is the review and approval of Site Plan applications. Under Sections 8.03.02 and 8.04.023 of the Cumberland Zoning Ordinance, the Planning Commission must review and approve all major site plans and any minor site plans that the Zoning Administrator determines the Planning Commission should approve. Major site plans may be approved by the Planning Commission only after concerned citizens have been given an opportunity to speak on the application. However, no formal public hearing is required.

The second role is to review and recommend action to the Mayor and Council on any petition or request to amend the Zoning Ordinance Text or to rezone property (a Zoning Map Amendment). The Planning Commission also may initiate Zoning Text or Map amendments to advance the spirit and intent of the Comprehensive Plan or a special planning study. All Zoning Text and Map Amendments must be processed in accordance with Section 15 of the Cumberland Zoning Ordinance. In this capacity, the Planning Commission serves as an advisory body to the Mayor and Council, which may not act on a Zoning Amendment request without a recommendation from the Planning Commission.

Under Maryland Law, there are 3 types of Zoning Map Amendments that the Planning Commission may hear. The first is a “Comprehensive Rezoning,” which is undertaken to implement a new or revised Comprehensive Plan. The Planning Commission may initiate this type of rezoning (which can include both Text and Map amendments) to advance the recommendations of the new or revised Plan. These rezoning actions require a public hearing before the Planning Commission, but do not require the posting of a notice on the properties that may be affected by the Zoning Amendment.

In accordance with Section 15 of the Cumberland Zoning Ordinance, both of the other types of Zoning Map Amendments require the posting of a notice on the impacted property or properties. The first of these additional amendment types is known as a “Base Zone Amendment.” A Base Zone Amendment is a change from 1 standard zoning district to another. A standard zoning district is a zone that is placed on the Zoning Map when it is adopted or revised and is not termed a “floating zone.” Any request from a citizen to change an existing base zone to a different base zone requires a special justification under Maryland Law. Under Section 4.05 (a) (2) (ii) of Article 66-B of the Maryland Annotated Code, a Base Zone amendment may be approved by the Mayor and Council only with a finding that either a substantial change has occurred in the neighborhood or the local government made a mistake in the original zoning of the property. This is known in Maryland as the “Change or Mistake” rule. The “Change or Mistake” rule can be a difficult justification to make that typically requires a basic understanding of Maryland case law.

The third type of Map Amendment is a change to a “Floating Zone,” which is a special type of zoning district that is not located on the Zoning Map until a petition to place it on a property is approved. A Floating Zone typically has special conditions and/or a list of Base Zoning districts that it can be applied in to determine if a property is eligible to receive the zone. Floating Zones are often used to allow a special type of development (or land uses) to occur on a property, subject to certain conditions and special requirements. This type of Zoning Amendment does not require a supporting finding under the “Change or Mistake” Rule. The City of Cumberland Zoning Ordinance currently provides for only 1 Floating Zone, the RR-Rehabilitation and Redevelopment Floating Zone.